1. ' SHAHID ANWAR BAJWA, J.---Vide short order, dated 22-8-2011, recorded in open Court, this Criminal Acquittal Appeal was dismissed and following are the reasons for the short order.
2. ' F.I.R. No, 32 of 2008 was recorded at Police Station, Sorah on 12-5-2008. It was alleged by complainant Hakim Ali that on the fateful morning, the complainant along with others had gone to their fields for working when on a double cabin datsun, they saw the present respondents variously armed. Accused persons are alleged to have resorted to aerial firing. After instigating others respondent No,1 gave blows to Mallah. Respondents Nos. 6 and 7 gave lathi blows to Sohrab.
3. Respondents Nos. 4 and 10 gave lathi blows to Saleem. Respondent No,11 gave Pistol blows to Ali Murad. Other respondents gave lathi blows to Piyaro and, thereafter, all the accused persons went away. The trial Court, vide Judgment, dated November 26, 2010, acquitted all the persons.
4. ' Learned counsel for the appellant submitted that the trial Court has failed to properly appreciate the evidence and has brushed aside the cogent evidence without any valid reason.
5. ' Learned A.P.-G. Supported the impugned order and submitted that there were two Mashirs: one was produced and the other was not produced. Learned APG relied upon the case of Mir Gul v.
6. Abdul Karim and 5 others, 1999 PCr.LJ 1587 and contended that since the appellant was not an injured person; therefore, in terms of section 417(2-A), Cr.P.C., he is not an aggrieved person and could not have filed or maintained the present appeal.
7. ' Exercising his right of reply, learned counsel for the appellant relied upon the case of Karim Bux v.
8. Ibrahim and 5 others, 2005 YLR 215 to contend that a complainant can, even if not injured, file an appeal against acquittal.
9. ' I have considered the submissions, made by the learned counsel and have also gone through the record.
10. ' In the F.I.R., it is claimed that Sohrab, Saleem, Ali Murad and Piyaro were injured. P.W.8, Dr. Syed Sajjad Hyder Shah, did not depose anything about the injury, alleged to have caused to Sohrab.
11. P.W. 1 stated that accused persons resorted to aerial firing but did not make straight firing at any of the persons in the complainant party while P.W.2 and 3 did mention aerial firing. P.W.4 did not make any statement regarding aerial firing. Same is the position of P.W.S. A Evidence of P.W.6 is merely hearsay because he stated that it was so stated to him by Abdul Hakeem. Similarly, P.W.7 is not an eye-witness. Investigating Officer in his evidence, and Mashirs, in their evidence, did not mention recovery of any empty from the place of incident. All this leads to the conclusion that the prosecution had failed to prove the case against respondents; therefore, this Criminal Acquittal Appeal does not have any merits and is, consequently, dismissed.
12. ' Learned A.P.-G. Referred to Mir Gul's case (supra). In that case, a Full Bench of Balochistan High Court was constituted specifically to consider the question whether under section 417(2-A), Cr.P.C., a , person, who has not been injured, can file an appeal .Against acquittal. The Full Bench of Balochistan High Court recorded its findings in the following words:-- "Applying the golden principle of interpretation of statute that words used in a section must be given their plain grammatical meaning, it may be seen that subsection (2-A) of section 417, Cr.P.C.
13. Opens within "A" then words have been used "person aggrieved", therefore, plain meaning of word "A" with reference to filing of an acquittal appeal would be that a person who has got significance/pivotal role in the judgment/ determination of the case. Thus, that a person could be a person who is primarily interested in conviction of the accused because he has allegedly caused hurt to him. In this context the definition or "a person aggrieved" under Black's Law Dictionary reproduced hereinabove, can also be referred according to which seizure is one. Who is the victim of search and seizure and distinction from one which is prejudice only through the use of evidence gathered in such direct at some one else. In the. Ballentine's Law Dictionary as well "aggrieved party" means one who has interest recognized by law in the subject-matter which is injuriously affected by the judgment or one whose property rights or personal interests are directly affected by operation of the judgment or decree, therefore, with reference to filing of appeal against acquittal order only that person would be aggrieved party whose right has been recognized under the law for claiming that the person who has caused hurt to him must be punished in the same manner. In fact, this is the basic idea, which has been introduced in the Islamic Law pertaining to homicide and body hurt. As it has been observed hereinabove that under amended section 345, subsection (2) a person on whom an attempt of Qatl-e-Amd has been made has got right to compound the offence meaning thereby that vice versa the person on whom attempt to commit murder has been made would be aggrieved person. Interchanging this expression with aggrieved party in terms of the dictionary definitions referred to hereinabove would be that special person who could initiate proceedings to challenge the acquittal."
14. ' And finally concluded as under:-- "Appeal under section 417(2-A), Cr.P.C. In a hurt case defined by the P.P.C, and tried by the Courts constituted under Criminal Procedure Code shall be competent by a person who has been hurt, and if he is a minor or insane then appeal will be competent on his behalf by his C father and grandfather or a paternal grandfather how-so-ever-high he may be. If he (convict) dies for any other reason before final decision of the hurt case then appeal would be competent by his legal heirs. "
15. ' On the other hand,. a DB of this Court in Karim Bux's case (supra) - though Judgment of Balochistan High Court was referred to it - held as under:-- "The first point which requires to be considered is about competence of the appellant to maintain the instant appeal. Admittedly prior to the insertion of subsection (2-A.) in section 417, Cr.P.C. The appeal could only be filed by the Provincial Government by issuing directions to the Public Prosecutor or in case an order of acquittal was passed in a case instituted upon a complainant the appeal could be filed in the High Court A after grant of special leave to appeal from the order of an acquittal. However an amendment in the Code was brought about by Act XX of 1994 which became effective from 14-11-1994 whereby the right to prefer an appeal was extended to any "person aggrieved by the order of the acquittal." The intention of the law-makers which could be gathered by making this amendment obviously was to extend the right to any person aggrieved by the, judgment of acquittal. In fact this is a beneficial amendment in the procedural law and must be construed liberally. In the instant case Karim Bux was not only the complainant but also an eye- witness of the incident. Nevertheless he was closely related to deceased Saddar as well as injured Amir Bux. In this view of the matter we are not persuaded by the contention raised by Syed Madded Ally Shah, learned counsel for respondents/accused that since the appellant was neither himself an injured person nor "Wali" of the deceased, thus, he was excluded from the term "aggrieved person" and was not competent to, maintain this appeal. This contention on the face of it is ridiculous, misconceived and devoid of force, the same is repelled."-.
16. ' Though the judgment of DB of this Court is binding on me, however, judgment of Full Bench of Balochistan High Court, authored by Mr. Justice Iftikhar Muhammad Chaudhri (as his 'lordship then was and now his lordship is the Chief Justice of Pakistan) makes the question still an open question as far as this High Court is concerned and it can only be considered in an appropriate case and, therefore, I leave this question for decision in an appropriate case.